2011-0462, City of Concord & a . v. State of New Hampshire & a

No. 2011-462 Merrimack

(McNamara

, J.) denying their motion for summary judgment and granting

and Mascenic Regional School District, appeal an order of the Superior Court LYNN, J. The petitioners, the City of Concord, the County of Belknap,

on the brief and orally), for the New Hampshire Retirement System. Getman, Schulthess & Steere, P.A., of Manchester (Andrew R. Schulman

the brief, and Mr. Mavrogeorge orally), for the State. attorney general, and Matthew G. Mavrogeorge, assistant attorney general, on ___________________________ Michael A. Delaney, attorney general (Richard W. Head, associate THE SUPREME COURT OF NEW HAMPSHIRE the brief, and Mr. Bassett orally), for the petitioners. Orr & Reno, P.A., of Concord (Jeffrey C. Spear and James P. Bassett on reporter@courts.state.nh.us to press. Errors may be reported by E-mail at the following address: Opinion Modified: September 28, 2012

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as contribute 35% of the employer contribution requirements. Compare p. 2 contribution requirements for these employees, and the State to annually

required all local subdivisions to annually contribute 65% of the employer

employer contributions. From 1977 until 2009, RSA 100-A:16, II(b), (c)

required for financing NHRS come from investment returns, see the amount of funds needed to finance NHRS. RSA 100-A:16. The funds trustees, prepares a valuation of NHRS’s assets and liabilities, and determines A:16, the local subdivisions and the State share the responsibility for the which NHRS is underfunded. RSA 100-A:16, II, III. Pursuant to RSA 100and (2) the accrued liability contribution, which is essentially the amount by

municipalities, counties, and school districts, filed a petition for declaratory The petitioners, on behalf of themselves and similarly situated to finance NHRS. On a biennial basis, an actuary, as directed by the board of

contribution, which is a percentage of each employee’s earnable compensation;

covered employees beginning in fiscal year 2013. II(b), (c) to impose upon local political subdivisions 100% of the employer contribution for the 1 During the 2011 session, the legislature enacted Laws 224:191, which amends RSA 100-A:16,

RSA 100-A:16 (Supp. 2010) (amended 2011) sets forth the method used year 2011. Laws 2009, 144:52 (hereinafter, section 52).1 70/30 local-state split in fiscal year 2010, and a 75/25 local-state split in fiscal The employer contribution rate has two components: (1) the normal provided by the employers and the State from a 65/35 local-state split to a 100-A:16, II to alter the percentages of the contributions required to be 1977, 528:2 with Laws 2009, 144:52. In 2009, the legislature amended RSA

firefighters are required to be enrolled in NHRS. See RSA 100-A:2 (2001). Under RSA chapter 100-A, police officers, teachers, and System (NHRS) is a tax qualified pension trust for certain public employees.

A:1, IV (Supp. 2011); RSA 100-A:16, II (Supp. 2010) (amended 2011). contribute to the funding of retirement benefits for these employees. RSA 100-

I, and employer contributions, see RSA 100-A:16, II, III. . .”); see I, I-a (Supp. 2010) (amended 2011), employee contributions, see RSA 100-A:16, fireman . . . shall become a member of [NHRS] as a condition of employment . . RSA 100-A:15,

The pertinent facts are not in dispute. The New Hampshire Retirement

local school districts, cities, and towns (local subdivisions), are required to permanent policeman, and permanent fireman). Their employers, including also RSA 100-A:1, VI-IX (Supp. 2011) (defining the terms teacher,

2010) (amended 2011) (“Any . . . teacher, permanent policeman, or permanent

We affirm. summary judgment in favor of the respondent, the State of New Hampshire. matter of law.” N.H. Assoc. of Counties v. State of N.H. p. 3 exists, we determine whether the moving party is entitled to judgment as a its capacity as the nonmoving party and, if no genuine issue of material fact

language used in light of the circumstances surrounding its formulation. N.H. When required to interpret a provision of the constitution, we view the

judgment, “we consider the evidence in the light most favorable to each party in

N.H. CONST. pt. I, art. 28-a.

subdivision. funding by a vote of the local legislative body of the political

In reviewing the trial court’s rulings on cross-motions for summary

unless such programs or responsibilities are approved for

mandate.

programs or responsibilities are fully funded by the state or

judgment, and maintaining that section 52 is an unconstitutional unfunded arguing that the trial court erred in granting the State’s motion for summary be constitutional and will not declare it invalid except on inescapable grounds; and, accordingly, did not reach NHRS’s motion. The petitioners appeal, was cast. N.H. Assoc. of Counties

expenditures by the political subdivision unless such subdivision in such a way as to necessitate additional local modified programs or responsibilities to any political

reviewing a constitutional challenge to a legislative act, we presume the act to judgment, granted the State’s motion for summary judgment on the merits,, 158 N.H. at 288; Flynn, 133 N.H. at 21. In meaning they must be presumed to have had to the electorate when the vote v. Flynn, Comm’r, 133 N.H. 17, 21 (1990). We give the words in question the Assoc. of Counties, 158 N.H. at 288; N.H. Munic. Trust Workers’ Comp. Fund

The state shall not mandate or assign any new, expanded or

Constitution. Article 28-a provides: unfunded mandate in violation of Part I, Article 28-a of the New Hampshire

the petitioners. The trial court denied the petitioners’ motion for summary from using NHRS trust funds as the source of any monetary compensation to party and that the New Hampshire Constitution and RSA 100-A:15, I, forbid it

(2009) (quotation omitted). The issue on appeal is whether section 52 is an

filed a separate motion for summary judgment, arguing that it was an improper judgment. NHRS took no position on the constitutionality of section 52, but Constitution. Both the petitioners and the State moved for summary an unfunded mandate that violates Part I, Article 28-a of the New Hampshire

Hampshire and NHRS as respondents. The petition alleged that section 52 is and injunctive relief, and damages in superior court, naming the State of New procedural adjustments to pre-existing legislative schemes. Id

The defendant argued that Article 28-a permits the legislature to make funding.” Id local government a new fiscal obligation.” Id

examinations. Id well as increased costs incurred in conducting pre-employment medical would qualify for benefits even though their cancer was not work-related, as

this argument, explaining that in light of the plain language and legislative

government without either obtaining their consent or providing the necessary. unsupported by the record and held that the statute at issue “impose[d] upon government an additional fiscal obligation.” Id modified program, but also on whether or not the mandate imposes upon local. We found no indication that these findings were

providing benefits to these firefighters who, as a result of the presumption, be categorized as a program.” Id court determined that the local subdivisions would bear increased costs due to prohibition against all State mandates that, for one reason or another, may not based upon cancers that were not actually work-related. Id. at 2 p. 4 4. The trial the language. Id presumption created by the statute, some firefighters would prevail on claims

We then examined the statute being challenged “to determine whether it

designed to prohibit the State from placing additional obligations on local.

hinge solely on whether or not it may be categorized as a new, expanded or amendment itself.” Id constitutionality of a particular State mandate under [A]rticle 28-a does not

violated Article 28-a. Flynn broader than the term “program” and is meant to “act as a sweeping presumption that cancer disease in a firefighter . . . is occupationally related”. at 21-26. We explained that the term “responsibility” is constitutional convention and found that they supported our interpretation of have addressed Article 28-a in just six cases. We first interpreted it in Flynn. We also examined the statements of delegates to the it will be helpful to review our prior jurisprudence construing Article 28-a. We state-local NHRS employer contribution percentages under the statute at issue, definition of the term “responsibility” and determined that “the amendment was new, expanded or modified program or responsibility.’” Id. We examined the

“ascertain[ed] the meaning of [A]rticle 28-a [by examining] the language of the was our first decision addressing Article 28-a after its adoption in 198 p. 4 4, we

in which we considered whether a statutory amendment creating a “prima facie

Before proceeding to an analysis of the constitutionality of the altered

constitution. N.H. Assoc. of Counties, 158 N.H. at 288. that is, unless a clear and substantial conflict exists between the act and the schools.’” Id

p. 5 costs of students placed by the district or probate courts in ‘residential

28-a, we examined not only the change to RSA 193:27, I, but also various other

with the scope of a school district’s responsibility “for the special education

phrase “home for children.” Id Three years later, we decided Nashua School District v. State

district where the child resided was required to reimburse the school district

In determining whether the amendment to RSA 193:27, I, violated Article

special education costs of a child placed in a ‘residential school.’” Id. at 460. 193:27, I (Supp. 1994), a provision of New Hampshire’s education laws, dealing effect of making the [school district in which the child resided] liable for all unconstitutional. Id. at 459-62. The amendment thus “ha[d] the residential school’ approved by the board of education” to the definition of the requirements of the statute, but rather amended the statute by adding “‘any amendment to RSA 193:27, I, did not alter the substantive reimbursement

educationally disabled child was placed in a “home for children,” the school

. at 458. Pursuant to New Hampshire law, whenever an

landfill, composting facility or incinerator for disposal.” Id 457 (1995), in which we examined a 1985 statutory amendment to RSA stronger grasp of their fiscal affairs,” and held that the challenged statute was, 140 N.H.

at 546-48. cost-creating responsibility, we held that it did not violate Article 28-a. See id. Id. at 547 (emphasis added). Because the proposed bill did not mandate any recycling operations, this effect is not mandated by the proposed [legislation].” in most towns and cities may be the establishment or continuation of . . . recycling requirements. Id. We determined that “[a]lthough the practical effect Our next occasion to address Article 28-a was in Opinion of the Justices however, require any affirmative action by the local subdivisions, such as

generator, and [also would have] prohibit[ed] acceptance of those goods by a would have “prohibit[ed] [the] disposal of certain goods by the solid waste new financial responsibilities, not of their own creation, and to permit them a stream.” Id. at 543 (quotation omitted). Specifically, the proposed legislation that “[set] priorities for the disposal of certain components of the solid waste contained therein.” Id The issue in Solid Waste Disposal was the constitutionality of a proposed bill local political subdivision expenditures by virtue of the mandate.” Id. at 545. of responsibility to the political subdivision and a requirement of additional mean that “[i]nvoking [this] constitutional prohibition requires both a mandate (Solid Waste Disposal), 135 N.H. 543 (1992), in which we interpreted Flynn to

provide a safety net to save cities and towns from the burden of coping with

constitution, creating limitations that are not clearly expressed by the language history, “[f]or us to hold otherwise would require that we rewrite the liability for damages. p. 6 discontinuance (or failure to maintain) the highway exposed the town to

in his view, this option did not present a “meaningful choice” because

expend to maintain the reclassified segments of the highway constituted an Town of Hinsdale v. Town of Chesterfield, 153 N.H. 70 (2005). asserted that the additional funds which the municipality would be required to observe that a town does not have unrestricted authority to discontinue a highway. See, e.g., mandated responsibilities, but also applies to expanded or modified ones, and RSA 231:48, :49 (2009). Although not mentioned in Justice Nadeau’s dissent, we also 2 See Article 28-a, he asserted that Article 28-a was not limited to new state-

town could choose either to maintain the reclassified roadway or discontinue it; their boundaries,” id reclassification did not impose a new responsibility on the town because the (Nadeau, J., dissenting). He also rejected the State’s argument that the

segments in question. Id

towns had responsibility for maintaining local highways prior to the adoption of

was not an unconstitutional unfunded mandate. Id. at 79-80.

Six years later, in Town of Nelson v. N.H. Department of Transportation because “[t]owns have historically been responsible for the local roads within new program nor required the town to accept a new responsibility,” id. at 79,

was responsible for providing maintenance for the reclassified segments for at

local expenditures.” Id reclassification, the State was responsible for maintaining the highway reclassification of certain portions of a highway. Id. at 75-78. Prior to the

proposition that “Article 28-a does not preclude municipalities from 146 N.H. 75, 78-79 (2001), we relied upon Nashua School District for the

unconstitutional, unfunded mandate.” Id. court’s conclusion . . . that the [statutory] amendment did not create an differ somewhat from the trial court’s,” we saw “no reason to disturb the trial

or responsibility to the school district in such a way as to necessitate additional the education statute did not amount to a “new, expanded or modified program statutes, the 1985 amendment to RSA 193:2 p. 7 7, I, adding residential schools to we held that because these obligations were previously mandated by other public education, and any special education needs.” Id. at 460. Accordingly, schools” bore “greater costs, including the costs of residential services, regular the 1985 amendment to RSA 193:27, I, towns sending children to “residential placements in residential schools. See id. at 460-61. We noted that prior to statutes that dealt with the financial liability for costs of court-ordered juvenile statutory provision. Id

funding scheme.” Id

were repealed, but their substance was then incorporated into a different statutory scheme that were intended to be repealed by the sunset provision As a result of the enactment of chapter 263, some portions of the

scheme. Id

by the counties. Id. While there was no “hold harmless” provision for fiscal [would] not be required to pay more than they paid under the prior statutory provision for fiscal years 2009 and 2010 that “ensur[ed] that the counties statutory scheme would be repealed on June 30, 2003. Id certain costs from fifty to one hundred percent, but included a “hold harmless”

and disabled.” N.H. Assoc. of Counties between the counties and the State financial support for the indigent elderly. amendment challenged by the plaintiffs, which reorganized the statutory

another amendment that increased the amount of certain payments required However, the repeal was delayed. Id. at 28 p. 7 7. In 2005, the legislature passed seventeen-year-old voters. Id unconstitutional unfunded mandate. Id. at 286-87. amendment contained a “sunset” provision stating that certain portions of the state by adding a provision pertaining to the registration process for such

Id statutory change that required the counties to cover additional costs for but municipal responsibility for processing all voter registrations is not new.” years before chapter 263 was enacted, the counties had approved a different

“realigned and consolidated the statutory scheme governing the relationship There, we addressed the constitutionality of Laws 200 p. 7 7, chapter 263, which seventeen-year-olds.” Id We most recently discussed Article 28-a in N.H. Assoc. of Counties.

merely concluded that the proposed amendment would not create an also proposed to amend the voter registration form to be used throughout the development” may be an “expanded or modified” responsibility and instead . at 2 p. 7 75. Citing Town of Nelson, we again did not address whether this “new

year-olds to register and vote in primary elections ‘may be a new development,’

. “That [the proposed amendment] allows certain seventeen-

“[did] not create any new program or require municipalities to accept a new

would have added language “pertain[ing] to the proof of age required of certain changed any of the registration requirements already imposed by statute, but

and presidential primaries” violated Article 28-a. The challenged legislation that would have given “certain seventeen-year-olds the right to vote in state p. 7 75 (2008), we considered, among other things, whether a statutory amendment In Opinion of the Justices (Voting Age in Primaries), 157 N.H. 265, 274state funding or credits violated Article 28-a, see

p. 8 continue funding.” Id funded prior to the adoption of Article 28-a, and are therefore required to

beyond the period to which they had consented without providing offsetting

the appeal. Id 28-a aims to prevent,” id

local financial contributions.” Id governmental subdivisions; that is, “obligations . . . the local governments

statutory scheme that extended the counties’ increased financial obligations

because it did not merely “influence” local functions, but “directly implicat[ed] statutory change from “impos[ing] a greater cost upon the counties.” Id programs or responsibilities that were pre-existing obligations of local Assoc. of Counties amounted to a change in local governments’ responsibilities Town of Nelson and Voting Age in Primaries, the statutory scheme in N.H. the constitutional amendment. Id. at 296. In addition, in his view, unlike in the costs for the long term care of the indigent and disabled elderly pre-dated funding out-of-district school placements, the State’s responsibility for part of sunset [provision] does not violate Article 28-a.” Id the adoption of Article 28-a local governments had the sole responsibility for Specifically, unlike the situation in Nashua School District, in which, prior to scheme at issue in N.H. Assoc. of Counties from those involved in prior cases. Article 28-a. Id. at 295. However, he distinguished the legislative legislature intended to establish spending caps at a later date, the fiscal

years 2009 and 2010 because the hold harmless provision prevented this In his view, our prior cases had recognized an exception to Article 28-a for Counties. Id. at 292 (Duggan, J., concurring in part and dissenting in part). Justice Duggan concurred in part and dissented in part in N.H. Assoc. of

say that the challenged amendment violated Article 28-a. Id. enactment of Article 28-A, [and, therefore, chapter 263’s] extension of the with the constitution to declare a legislative act unconstitutional,” we could not

. at 291. “Because there must be a clear and substantial conflict

provision and the increase in the counties’ share of certain costs violated 290-91. As to fiscal years 2011 through 2013, we determined that because the

concluded that, nonetheless, it was not a violation of Article 28-a for fiscal change in the obligation was a “new, expanded or modified obligation,” but increased obligation from fifty to one hundred percent, we “presumed” that the

of the repeal date [was] merely a continuation of an obligation predating the

. Citing Town of Nelson, we first concluded that “the extension

The plaintiffs brought suit arguing that both the extensions of the sunset

omitted). billings “shall be established” by the legislature for those years. Id. (quotation years 2011 through 2013, the amendment did provide that caps on the total the State must mandate p. 9 the following four elements must be present before Article 28-a is violated: (1)

exercise. Nonetheless, we believe that careful scrutiny of our cases reveals that reconciling our cases elucidating the meaning of Article 28-a is not an easy In addressing the parties’ arguments, we acknowledge at the outset that

program or responsibility.

although in Flynn

benefits, the change required by section 52 is not an expanded or modified

change in the scope of that responsibility does not result in a violation of require them to do so, there is no violation of Article 28-a. Furthermore, historically had responsibility for the subject matter of the mandate, some

petitioners have always had the responsibility to provide some retirement the local political subdivisions. The State, in contrast, argues that because the schemes that have the effect of increasing the financial burden imposed upon

local governments to adopt new responsibilities but does not unequivocally these cases stand for the proposition that where a local subdivision has 157 N.H. at 275, and N.H. Assoc. of Counties, 158 N.H. at 289. Collectively, subdivision. Thus, where, as in Solid Waste Disposal That case was thereafter cited with approval in both Voting Age in Primaries, responsibility has been expanded or modified. Town of Nelson, 146 N.H. at 78. an increase in expenditures alone is not dispositive of whether a program or legislature from making procedural adjustments to pre-existing legislative amendment’s reach. Town of Nelson began this process by establishing that subsequent cases have narrowed this expansive interpretation of the government an additional fiscal obligation,” Flynn, 133 N.H. at 23, our Article 28-a to mean any state requirement that “imposes upon local

we broadly construed the term “responsibility” as used in

state action merely creates circumstances or conditions that may influence

the state action, and which (4) necessitates additional expenditures by the local responsibility (3) that is new, expanded or modified from what existed before

responsibility or obligation for which a local government is likely to be called petitioners maintain that the scope of Article 28-a “is broad, encompassing any

Flynn

“employs an impermissibly narrow conception of Article 28-a’s scope.” The contributions directly rather than by modifying an underlying activity, Town of Nelson, [146 N.H. at 78],” because it modified their financial conclusion that section 52 did not violate “the two part test . . . established in ].” In particular, they contend that, in light of Flynn, the trial court’s Article 28-a that are at odds with [the] fundamental purposes [discussed in The petitioners argue that the trial court “adopted three peculiar readings of With the above cases in mind, we turn to the issue before us on appeal.

eligible to vote without the legislation. increased expenditures. political subdivisions to register persons (certain seventeen-year-olds) who would not have been in Voting Age in Primaries, notwithstanding that the proposed legislation would require local to the reclassification did not violate Article 28-a. Similarly, no constitutional violation was found was responsible for maintaining portions of Old Route 9 that it had not been responsible for prior , the fact that, following reclassification by the State, the town 3 For example, in Town of Nelson

amendment demonstrates an intention to distinguish between programs and chose to use them advisedly . . . .”). The language actually used in the presume that the legislature was aware of the difference between . . . words and Cookson Co. v. N.H. Ball Bearings, 147 N.H. 352, 357 (2001) (“It is proper to Sand & Gravel v. Town of Goshen, 155 N.H. 762, 765 (2007); see also John A. clearly expressed by the language,” Flynn “uses two different words, it generally means two different things.” Guildhall obligation. Because the first reading would “creat[e] limitations that are not Article 28-a are not merely requirements that the local subdivision incur of the well-recognized principle of construction that where the enacting body and connotes some type of “obligation,” the obligations within the purview of and to adopt a construction that gives these terms the same meaning runs afoul speaks of “responsibilities,” whereas the second clause speaks of “expenditures,” course, this is not what the amendment says – the first clause of the amendment to necessitate additional local expenditures by the subdivision . . . .” But, of After thoroughly reviewing the cases following Town of Nelson modified programs or [expenditures] to any political subdivision in such a way as as follows: “The state shall not mandate or assign any new, expanded or spend money, then the operative language of Article 28-a would read, in essence, Indeed, to the extent “responsibility” could mean simply an obligation to

the term “responsibility” to mean something more than merely a financial teaching that the word “responsibility” has a broader meaning than “program” “responsibility” than that articulated in Flynn. So while we adhere to Flynn’s Counties reflect a more nuanced interpretation of the meaning of conclude that Town of Nelson, Voting Age in Primaries and N.H. Assoc. of intention not fairly expressed in it.” Id. at 21 (quotation omitted). Instead, we “[W]e will not redraft the constitution in an attempt to make it conform to an Article 28-a as explained in Flynn, we do not read the cases in this fashion. inconsistent with our understanding of the legislative history and purpose of

responsibilities, but not expanded or modified responsibilities; or (2) construing of Article 28-a to prohibit the State from mandating or assigning only new conclude that they can be interpreted in one of two ways: (1) limiting the scope

NHRS had existed for many years before Article 28-a was adopted. contribute to the funding for their employees who are required to participate in in this case based its decision upon the fact that the petitioners’ obligation to Article 28-a.3 Following the reasoning of these post-Flynn cases, the trial court we decline to read Article 28-a in this fashion. See p. 11 people intended such a substantial alteration of fundamental legislative power, Representatives and the Senate. Without a far more explicit indication that the

confers “the supreme legislative power” of the State on the House of

bring it into conflict with Part II, Article 2 of the State Constitution, which

conflating “responsibilities” with “expenditures.” at 23, it gave no consideration to whether such broad construction had the effect of improperly necessary to distinguish it from “programs,” a term also used in Article 28-a, see Flynn, 133 N.H. We note here that while the Flynn court thought its broad construction of “responsibilities” was 4 and appropriations. Indeed, to interpret the amendment in such fashion would to local governments effective control over the establishment of the state budget constitutional provision will bear two constructions, one of which is consistent There is also no indication that the amendment was designed to delegate Advisory Opinion to the Governor, 96 So. 2d 541, 545 (Fla. 1957) (“[W]here a construed so as to avoid conflict, such a construction should be adopted.”); construction dictate that when constitutional provisions can reasonably be (People), 815 P.2d 304, 314 (Cal. 1991) (“Rudimentary principles of

be the same under the analysis we employ today. since Flynn was decided, the result reached in that case would in all likelihood methodology for evaluating claims under Article 28-a has evolved over the years provide to police officers, firefighters and teachers. Thus, although our without the presumption. See firefighters afflicted with cancer who would not theretofore have received benefits changes to the scope of retirement benefits local subdivisions are required to the effect of requiring them to provide workers’ compensation benefits to some only as respects the first category). Here, by contrast, section 52 makes no entitlement without the presumption – and that the statute violated Article 28-a would receive benefits to which they would not have been able to show unable to rebut the presumption, and those with work-related cancers who cancers who would nonetheless receive benefits because local governments were create two new classes of firefighter claimants – those without work-related (Souter, J., dissenting) (explaining that the effect of the new presumption was to benefits for illnesses not covered under the prior law.”); see also id. at 28-29 legislative change is to mandate a responsibility upon local government to provide

substantive responsibility on local subdivisions. The presumption it created had important respect: the statute at issue in that case did impose an additional conduct a stare decisis analysis. This case is distinguishable from Flynn in an does not amount to an overruling of Flynn, and there is, therefore, no need to the assertions of the petitioners and the dissent, our conclusion in this regard duty or activity performed or to be performed by local government. Contrary to state action must impose some substantive change to an underlying function, we conclude that to constitute a new, expanded or modified “responsibility,” the responsibilities, on the one hand, and expenditures, on the other.4 Accordingly, p. 12 Affirmed

then, in later years, shift the costs of such activities to the local subdivisions.

would effectively be at the mercy of local governments with respect to the state subdivisions to implement new state-funded programs or responsibilities, and

eliminating) the State’s contribution to NHRS for such employees, the State to imply that the State could circumvent Article 28-a by requiring local Article 28-a were construed so as to prohibit the legislature from adjusting (or the ratification of Article 28-a. Accordingly, today’s decision should not be read determine the amount of the employer contribution to NHRS. Consequently, if find it significant that the responsibility to participate in NHRS existed before

expenditures alone are not a violation of Article 28-a. See

long been required to participate in NHRS. As the trial court accurately noted, 12 The petitioners do not dispute the fact that the local subdivisions have governments, nor the salaries they are paid. Yet it is these factors that largely Although we do not decide the ultimate importance of this factor here, we

DALIANIS, C.J.